The need to set aside the blatantly wrong conviction of Anthony Fernando

'Tony Fernando’s contempt of court matter merits our focus. With the retirement of the former chief justice, Sarath Nanda Silva, the opportunity has arisen for the correction of a blatantly illegal and unjust judgment relating to Michael Anthony Emmanuel Fernando, who was summarily sentenced for one year’s rigorous imprisonment on the 6th of February, 2003 for alleged contempt of court. The sentence was immediately carried out.

Fernando, a layman, was pursuing a fundamental rights application where he had filed several motions which were refused. Filing a fourth motion he requested that, as the earlier motions were refused by the chief justice and two other judges, that the case be heard before another panel. The alleged reason for sentencing him was that he had disturbed the proceedings. Subsequently an appeal was filed on his behalf but leave to appeal was rejected by the same three Supreme Court judges who initially sentenced him.

The undisputed facts are that there was no inquiry before sentencing, no legal representation of any sort was allowed nor any opportunity to seek legal advice before the judgment was given instantly. Subsequently the UN Human Rights Committee held that the sentence of imprisonment by the court amounted to illegal imprisonment under the International Covenant on Civil and Political Rights.

It has been an established practice of all legal systems, whether they are based on common or civil law that correction of errors of grave and serious nature is within the power of the highest court of the country. The question of finality of a highest court judgment is no barrier to the correction of blatantly illegal judgments.

While the principle of finality of the judgments of the highest court is important to prevent frivolous litigation and to settle matters finally so as to put them to rest, the correction of blatant wrongs does not contradict that principle. In fact, it enhances this principle in that the grievances based on a blatant illegality are put to rest by the courts subsequently correcting such wrongs.

It enhances the prestige of the courts and also the ultimate possibility of dealing with human errors as no one, including judges are immune to making such errors. The principle of finality in judgments is not the same as the principle of infallibility claimed by some institutions. No court claims itself to be infallible. It only claims to be as rationally consistent and just, according to law and the procedures as human beings may possibly be. This same claim admits the possibility of error either inadvertently or in some instances willfully by way of arbitrary judgments based on prejudice or caprice of a particular judge or judges of a court.

With the introduction of forensic science and particularly with the introduction of DNA testing there have been many cases where persons sentenced to death or other serious punishments have been declared innocent and the earlier judgments quashed. In this aspect there are a vast number of cases from many countries.

Even before such tests of scientific accuracy were introduced, purely on the consideration of law and assessments of facts there have been many judgments of superior courts quashed which had, on earlier occasions decided otherwise. The allowing of further applications to the highest court on the basis of serious considerations has been permitted in the courts of common law jurisdiction over and over again. In some cases formerly convicted prisoners, who by the time of final exoneration were dead, have been declared as persons wrongly convicted by the same superior courts which had long years earlier, convicted them.

One such case is that of Derek William Bentley who was sentenced to death on the 11th of December, 1952 after a trial before the Lord Chief Justice of England and Wales, Lord Goddard. The death sentence was carried out on 28th of January, 1953. After numerous appeals, on the 30th of July, 1998 the Court of Appeal of England set aside Bentley’s conviction for murder made forty years earlier.

The Lord Chief Justice, Lord Bingham of Cornhill ruled that Lord Goddard had not made it clear to the jury that the prosecution is required to have proved that Bentley had known that the person who he accompanied for a robbery was armed; Lord Goddard failed to raise other issues which may have lead to the conclusion of Bentley’s innocence.

The persistent attempt to seek justice by Bentley’s sister and after her death Bentley’s niece finally led to the quashing of the judgment made forty years earlier by erroneous application of the law.

The matters involved in Michael Anthony Emmanuel Fernando’s case are much more blatant errors which amount to the complete denial of due process followed by a disproportionate punishment even if there was an offense and the offense was proved. Errors of such great enormity can hardly be found in the judgment of any superior court in any of the commonwealth jurisdictions.

The question that remains quite simply is as to whether a well known error which leads to a serious miscarriage of justice could be corrected within the legal framework of Sri Lanka. This is a matter that the judges of the Supreme Court of Sri Lanka must finally decide. It is also a matter that the legal community of Sri Lanka should take seriously and pursue as it would create a much needed precedent on correcting grave errors in judgments even after the judgment of the final appeal has been entered into by a superior court.

The Asian Human Rights Commission urges all the international human rights organizations to contribute by way of research and other legal advice for the pursuit of this matter before the Supreme Court of Sri Lanka with a view to quash the said conviction.